Tag Archives: defamation

The press regulator, Impress, has refused a request for arbitration and compensation from former Liberal Democrat MP, John Hemming, over an article published on this blog last September when the Crown Prosecution Service decided not to issue criminal proceedings against the ex MP and two other people over allegations of child sex abuse from Esther Baker.

The article reported, almost in full, statements issued by Staffordshire Police and the ex MP after the decision was announced by the CPS. The CPS concluded there was ” insufficient evidence ” to proceed, the ex MP said he had been the subject of false allegations.

Since then Esther Baker has appealed the CPS decision and a ruling is expected some time in the autumn.

This blog is not directly covered by the regulator, IMPRESS, but because I cross post articles on the independent platform, Byline, it is indirectly covered since Byline has agreed to be regulated by IMPRESS.

IMPRESS’S regulatory committee ruled that the article on its own could not been seen as Mr Hemming claimed as ” harassment”. And it dismissed his claim for compensation by saying that any alleged harm caused to Mr Hemming by this article was ” trivial ” and ” too insignificant to meet the test ” for a claim.

For the record and to prevent other people putting any spin on this decision this is the text of the ruling sent to Byline:

“I am writing to advise you that an IMPRESS Regulatory Committee recently met to consider John Hemming’s request for arbitration. Having carefully considered his request in accordance with the IMPRESS procedures they have decided that the request is not suitable for arbitration under the CIArb/IMPRESS Arbitration Scheme. The reasons for their decision are set out below.

Reasons for Board arbitration suitability decision:

Rule 8.3 of the IMPRESS Regulatory Scheme requires the Board to make an administrative assessment of whether a claim is covered by the scheme. For the avoidance of doubt, this decision is not based on an assessment of the merits of a claim.
Rule 46 of the Regulatory Scheme Procedures provides six administrative criteria that need to be satisfied before a claim can be accepted under the scheme.

The Board considered each of these in turn:
(i) The claim is made against a publisher regulated by IMPRESS.
The Committee was satisfied that the claim was made against a publisher (Byline) that was regulated by IMPRESS at the time of the act complained of (6 September 2017).
(ii) The claim is related to one of the areas of law covered by the scheme.
The Committee was satisfied that the claim related to an area of law covered by the scheme, namely defamation and harassment. With regards to the claim for harassment however, though this related to one of the areas covered by the scheme, the Committee determined that the claim for harassment did not satisfy the relevant test. This was because, under a claim for harassment, a ‘course of conduct’ required two or more events to be characterised as such. The claimant therefore could not bring a claim against the publisher for the publication of one article.
(iii) The claim is not a pre-publication matter where it is appropriate for it to be directed to the courts.
The Committee was satisfied that the claim did not relate to a pre-publication matter where it was appropriate for it to be directed to the courts.
(iv) The claim provides a clear statement setting out the harm or financial loss suffered by the claimant.
The Committee was not satisfied that the claim clearly set out the harm or financial loss that the claimant had suffered as a result of the published article. It noted that the claimant largely relied on the fact that the article was part of a wider campaign against him which he accepted that Byline was not a party to.
(v) The claim describes a specific action or activity of a publisher that has caused the alleged harm or financial loss.
The Committee was not satisfied that the claimant adequately described how it was the article published by Byline that caused the alleged harm and loss to the claimant. This is because, although the claimant identified specific harm and loss caused by the ‘wider campaign’, the claimant failed to specify any harm or loss which arose as a direct result of the article published by Byline. The Committee determined that any harm or loss caused to the claimant by the publisher was trivial or incidental in conjunction with the remainder, and was thus too insignificant to meet the test.
(vi) The claimant explains why the complaint is not suitable for resolution by the IMPRESS complaints procedure.
The Committee accepted that given that (i) the complaint did not, on the face of it, appear to engage the Standards Code and (ii) the claimant sought financial compensation as a remedy, it was not suitable for resolution by the IMPRESS complaints procedure.
In conclusion, the Committee decided that the claimant’s request for arbitration should be refused on the grounds that parts (iv) and (v) of the test were not met.

The law offering a new defence and a remedy for bloggers besieged by defamatory comments from unknown sources will come into force on New Years Day 2014.
The regulations highlighted in a previous blog on this site have now been approved by both Houses of Parliament and will form the first move under the Defamation Act affecting websites.
The law will also set out a procedure on how complaints should be handled and also put an onus on the person complaining to explain what grounds they have for a complaint.
The changes on the law are outlined pretty comprehensively on the Inforrm blog which also includes a comment from a sceptical blogger about how useful they will be.
The new law was welcomed in the Lords. In a debate Lord Lester waxed lyrically about them. He said ” my noble friend Lord McNally [the Lib Dem government minister] is like Moses in the splendid portrait, bringing down the tables of the law to the Israelites, in seeking the approval of the House to the regulations what he is doing is important not only in this country but throughout Europe and in the wider world.”
Other peers admitted they knew nothing. Labour’s Lord Beecham said “when it comes to the world of computers, information technology and social media, I confess to being an utter novice. At risk of being labelled a Marxist by the right-wing press or Conservative Central Office, I recall some words of Marx—Groucho, I hasten to add, and not Karl. In one of his films, which might have been “A Night at the Opera” but I would not swear to that, he is seen poring over a map and declares that a child of five could understand the map. He continues: “Bring me a child of five”. I am tempted to make the same request when confronted by matters of the kind encompassed by these regulations.”
At least one peer was honest!

The government has just tabled draft regulations under the new Defamation Act to protect English and Welsh bloggers from being sued if people put up unwanted libellous comments on their websites.
I am indebted to Rupert Jones,a Birmingham barrister who specialises, among other things, in media law for drawing my attention to draft regulationswhich have been tabled by the Ministry of Justice. The regulations have to be debated by a committee of MPs and peers before becoming law. As far as I can see these regulations do not apply to Scottish or Northern Ireland websites.
From my reading as a journalist it allows bloggers 48 hours or two working days after a complaint has been received to contact the person who put up the comment and make a decision whether to take down the comment. It also allows – if both sides agree – for the person complaining about the comment to be put in touch with person who posted it.
For WordPress users like myself this is particularly good news. Under present arrangements I can moderate comments from new people who want to debate issues. But I cannot stop existing commentators putting up a new comment which is automatically published at the same time as I am alerted by WordPress.
Luckily all people commenting have to leave an email address – even if they are not using their real name – where they can be contacted.
The regulations also allow a ” get out” clause for websites carrying comments from people who cannot be traced – to remove the comment within 48 hours as a strong defence against anybody suing them for carrying an anonymous comment. There is also a lot of leeway for the courts to extend the 48 hour period to cover disputes.
All this is welcome news given my last report about the mad decision of the European Court of Human Rights to allow people to sue websites for comments from anonymous people even after they had taken them down.
Luckily I am told Britain does not have to follow the rulings of the European Court of Human Rights – unlike – and this has confused some people – the European Court of Justice, which is an EU institution.
These new rules – if followed by a website – will make it much more difficult for an intransigent complainer to win any libel action in the UK. And if they want to take it to the European Court of Human Rights they will have to go through the whole British justice system which will cost them a fortune.
So there is some good news to protect bloggers from comments they have never made.

The Ministry of Justice has just excelled itself with a daft plan to try and tackle libellous and abusive comments on websites.A splendid blog on the Inforrm website by media lawyer Ashley Hurst from Olswang reveals that a so-called simple system to provide redress to force web operators to take down posts is anything but that.
As he himself states the ministry claimed it “designed to be as straightforward as possible for people to use” but there are in excess of 20 cross-references in a procedure spanning over four pages with 47 FAQs and 10 pages of guidance.”
Worse it looks as though it will do the opposite that it intends by encouraging more people to blog anonymously as people might have to get court orders to find out who is behind the post.
He points out “People blog and comment on websites anonymously for a reason: because they do not want to be identified. Why would an anonymous blogger suddenly identify himself without a court order because a website operator tells him that a legal complaint has been received? There is absolutely no incentive, especially for a whistleblower, someone intent on causing damage, or someone who cannot afford to be sued, to come forward and identify themself voluntarily as a potential defendant.”
There is also a 48 hour fast track application to get someone’s post down – but make one mistake in the form and web operator can ignore. I can’t imagine WordPress, based in the US with a tradition of free speech, being over impressed by these new UK regulations.
For those who want to study it further he supplies a flow diagram, which almost rates in complexity ( but not quite) with Andrew Lansley’s re-organisation of the NHS.
In my view the planned regulations look hardly worth the paper they are written on. They seem a waste of cyberspace.

This is a second good piece of news for bloggers who follow political scandals, local councils, the NHS and bad practice in public services. You needn’t worry if you don’t get it 100 per cent right.You are going to have new rights protecting your reporting and comments so long as you can justify it is the public interest and produce fair accounts of public events. The great thing is you can report public protest meetings with full protection. Another invaluable piece of legal advice for all those following public affairs.

In this second part of four posts by Timothy Pinto of Taylor Wessing, he considers the changes to common law and statutory privilege which will result from the Defamation Act 2013. Part 1 on “Serious Harm, Truth and Honest Opinion” can be found here.

Rushed legislation is bad legislation. Proposals in the current crime and courts bill to extend regulation to the blogosphere at the switch of a clause without proper debate or consideration is daft and dangerous.

I have seen the detailed clauses put down for debate when Parliament returns this month – and frankly the only use for them is to swell the already well lined pockets of m’ learned friends. Taken together they are neither use nor ornament and if they became law all they would do is spread confusion and clog the courts with hours of pointless legal argument.

The aim is to try to bring the completely unregulated blogosphere within the new regulated press and media. The proposal was neither sought nor demanded by Lord Leveson, whose inquiry concentrated on big media. Leveson probably didn’t understand the blogosphere and as far as I know isn’t on Twitter.

The amendments tabled in the House of Lords just before the recess on March 27 can be seen here (http://bit.ly/14AyRHO). It looks as though it is in response to a letter from a number of bloggers from Paul Staines and Tim Montgomerie to Laurance Durnan and Sunny Hundal to the Guardian who objected to even more drastic measures (see http://bit.ly/XTs84y ).

But I still have enormous problems with the amendment. It is still not clear whether this blog should be covered by the law or not. On the one hand it is primarily a news blog ( should be covered then) but written by one person ( shouldn’t be covered then). It involves some editorial control – either pre moderation or post moderation of comments – depending on rules set by WordPress.com not me.(could be covered or not depending on your view.)

I can just imagine the arguments in a courtroom between lawyers on this blog and others. What will be the definition of incidental news ( how many stories do have to have to qualify) – what happens when a subject -like the current police investigations into paedophiles becomes news (do sites that write this up become news when it is the headlines, and not news when it is not).

When is a blog like Broken Barnet by Mrs Angry considered a community asset (exempt) or a news blog (not exempt). What is the definition of a small blog – one of the weird Lords amendments ( is it the number of hits, unique visitors, blog followers? Or as one person has suggested is it registered for VAT and does it pass the threshold for VAT?)

The main proponents for these new controls appear to be the Media Reform Coalition who have written this blog ( see http://bit.ly/13Mgr7S ) . They appear to be a self-appointed group of academics and lawyers. Their argument is that I should be registered to save exemplary damages being awarded against me by the rich and powerful and to avoid paying my opponents’ legal costs.

Since this blog appeared the Media Reform Coalition have today (Thursday) launched an on line consultation and more detailed explanation of the proposed changes. Those interested can find this at http://fb.me/2z6xrP6qz

In the meantime I am not swayed by the exemplary damages argument – it costs £1600 alone just to take out a libel writ at that level – so it would be beyond most people’s means. And also I suspect that many small bloggers caught in this trap wouldn’t employ lawyers – they would be become litigants in person – and clog up the courts just as the famous pair who took on Mcdonalds. And they won’t have the money to pay the other sides legal costs anyway – so whoever took them would end up out-of-pocket themselves. The case would also become a cause celebre.

My gut feeling is to rely on the new Defamation Act – which will restrict libel cases against anyone – as the rich and powerful will have to show the story has caused major damage – not just any damage. I think all sides would benefit if any proposals to include blogs were dropped from the remit of the regulator – until at least there is a considered debate. As I said making law on the hoof is a disaster. You have only to look at the Dangerous Dogs Act to see this. This is the equivalent of the Dangerous Bloggers Act!